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Saturday, May 14, 2011

Daniel Bedford sits on death row, awaiting execution by the people of Ohio. I offer the following summary from the US Sixth Circuit Court of Appeals, Daniel Bedford v. Terry Collins. I have eliminated most of the legal references without adding ellipses.

A jury convicted Daniel Bedford of the aggravated murder of Gwen Toepfert and the murder of John Smith, and at the jury’s recommendation a state trial court sentenced him to death. The Ohio courts affirmed his convictions and sentence on direct review and denied postconviction relief. Bedford sought a writ of habeas corpus under 28 U.S.C. § 2254, which the district court denied. We affirm.

In 1978, Bedford met Toepfert, whose father owned the bar where Bedford worked, and for the next several years the two were involved in an “on-again, off-again” relationship. By 1984, they were estranged.

Bedford’s feelings for Toepfert remained, however, prompting him to try to “rekindle [their] prior romance.” On April 21, 1984, he visited her apartment bearing a gift and hoping to make amends -- only to learn that Toepfert’s new boyfriend, John Smith, was already there. Three days later, Bedford tried again. At around 2:30 a.m. on Tuesday, April 24, Bedford, who had spent the evening working at one bar and patronizing another, telephoned Toepfert’s apartment -- only to learn from her roommate, Jo Ann Funk, that Toepfert was asleep and that Smith was with her.

Later that morning, Funk woke to the sounds of “gunshots and screams.” Apparently overcome by Toepfert’s rejection, Bedford entered her apartment armed with a .38 revolver and a shotgun, shot Smith after a brief struggle and shot Toepfert. During the melee, Toepfert ran into Funk’s bedroom, screaming that she had been shot. Bedford found her there and shot her again with the revolver and the shotgun. Smith and Toepfert died from the gunshots.

Bedford fled to Tennessee. Once there, he visited an acquaintance, to whom he confessed his crime, and who reported Bedford to the police. After Tennessee police arrested Bedford (and Mirandized him), he gave a statement admitting the crimes and eventually gave a similar statement to Cincinnati authorities.

I find nothing intrinsically suspicious about the state's explanation of the crime. I find no one making claims of actual innocence for Daniel Bedford. Not even Bedford himself claims he did not kill Gwen Toepfert. His defense during his trial was that his crime was not pre-meditated, that it was an unplanned outburst fueled by alcohol and emotion. His argument is mentioned in the Sixth Circuit's decision as the court discounted his claim that the prosecutor's closing argument was improper.

Bedford complains about comments by the prosecutor in closing argument at the guilt phase that allegedly disparaged defense counsel’s tactics. The prosecutor called “[s]ome” of Bedford’s “arguments” “Mickey Mouse defenses,” and he characterized others as attempts to “confuse” the jury by “fill[ing] the courtroom with as much smoke as you possibly can,” casting aspersions “all around the courtroom” and putting “everyone on trial in the case except our little boy over here” -- all in the hope that the jury would “lose sight of the real issues in the case.” Attempting to deflate an attempt by the defense to discredit a particular government witness, the prosecutor also predicted that the witness would “be dragged through the mud by the defense.”

These comments were not improper. The prosecution necessarily has “wide latitude” during closing argument to respond to the defense’s strategies, evidence and arguments. How far the government may go, true enough, depends on what the defense has said or done (or likely will say or do). And in all events the prosecutor may not simply belittle the defense’s witnesses or deride legitimate defenses, nor may he offer his own opinion about a witness’s credibility. But the prosecutor’s remarks in this case -- all made in the course of the fastmoving thrust and parry of a criminal trial -- did no more than respond to Bedford’s actual and reasonably likely contentions and tactics.

Several of the prosecutor’s comments, Bedford adds, were calculated to incite the jury’s passions and were engineered to elicit an emotional, not a reasoned, reaction to the evidence. Responding to the defense theory that Bedford’s conduct was the culmination of an unplanned outburst -- fueled by alcohol and emotion and sparked by a life-threatening confrontation with Toepfert’s new paramour -- the prosecutor argued: (1) that the evidence, including graphic photographs of Toepfert’s and Smith’s bodies, proved Bedford’s conduct was purposeful and planned; (2) that Bedford’s inner “demon” -- his alcohol dependence -- was not responsible for his behavior, as the only “demon in this case” was Bedford and (3) that the jurors’ duty required finding Bedford guilty and that, if they did so, each juror could say to himself “I did Gwen justice and I did Johnny justice.”

These comments did not deprive Bedford of a fair trial. By alluding to the victim photographs, already admitted into evidence, and arguing that they established Bedford’s intent, the prosecutor permissibly sought to draw an inference from the evidence. Calling Bedford a “demon” comes closer to the line -- it was unnecessary and unprofessional -- but it goes no further than similar comments that have not required setting aside a state conviction. See Olsen v. McFaul (holding that prosecutor’s deliberate, repeated references to defendant as a “deadbeat,” a “thief,” a “creep” and a “liar” did not violate due process); see also Byrd(regarding prosecutor’s repeated references to defendant as a “predator”).

Apparently, according to the U.S. Sixth Circuit Court of Appeals, the prosecutor may not "offer his own opinion about a witness’s credibility" but he can call the defendant a "liar." Welcome to the U.S. justice system.

Discussing prosecutorial misconduct is way, way, way, way, way beyond the scope of this modest post. Here I will merely observe that the court (in its desire not to overturn a case) has done nothing to discourage prosecutors from relying of theatrics and passion rather than evidence. In my not so humble opinion, closing arguments should be limited to discussion of facts. Alternatively, they should be forbidden altogether. Allowing either the state or defense attorneys descend to name-calling, character assassination, invectives demeans our justice system.

If the prosecutors can prove their case on facts alone, they should do so. If the prosecutors cannot prove their case on facts alone, the verdict should be "not guilty." In either case, prosecutors should not be allowed to supplement evidence with disparagement and inflammation of the jury.

The U.S. Sixth Circuit Court of Appeals once again encouraged prosecutor misconduct when they should have sanctioned it. They thereby increased the risk that defendants will be convicted by showmanship, passion, and fear rather than facts and considered deliberation. They have increased the risk of wrongful convictions.

Since I ration my resources for those cases in which a defendant or prisoner is factually innocent of the crime for which they are charged or convicted, I stand mute with respect to the execution of Daniel Bedford, with an exception. I object to the prosecutors conduct in this case and to the Sixth Circuit Court's endorsement of that conduct.